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Montana AG orders county to drop lawsuit against Rocking R Bar

Rocking R Bar
Posted at 12:55 PM, Jan 14, 2021
and last updated 2021-01-14 20:16:47-05

(UPDATE) Gallatin County Attorney Marty Lambert, who represents the Gallatin City-County Board of Health and Health Officer Matt Kelley, released the following message on Thursday afternoon:

The State of Montana is not a party to the R Bar case. The Attorney General may lack authority to “order and direct” a county attorney to dismiss a case where a local government entity, and not the State of Montana, is the plaintiff.
The Attorney General’s letter cites a rule of civil procedure providing that all the parties may sign an agreement to dismiss a case. Today I talked to a party to the R Bar case, Health Officer Matt Kelley. Mr. Kelley does not agree to dismissal, so the rule cited by the attorney general cannot be employed to dismiss the case by noon on January 15, 2021.
As to the bellicose remarks in the Attorney General’s press release, the Governor’s January 13, 2021, Directive recognized that local health authorities may enact rules or orders more restrictive than the Governor’s.
My staff and I will continue to research the matter.

We will update you as we get more information.

(1st REPORT) Montana Attorney General Austin Knudsen on Thursday exercised his supervisory powers in the 'Gallatin City-County Board of Health and Health Officer Matt Kelley v. Rocking R Bar' case.

Knudsen directed Gallatin County Attorney Marty Lambert to dismiss the case against the Bozeman business that had refused to adhere to the mandate that businesses close at 10:00 p.m.

Knudsen said in a news release: “The ten o’clock closure rule defies commonsense. This type of government overreach is devastating to Montana workers and small businesses. Our action today is a clear message that we need to safely reopen our economy and will not allow overzealous local governments to hold Montana businesses and their employees hostage.”

John Iverson of the Montana Tavern Association said, "This announcement will give stability and certainty to Montana businesses. They will no longer have to fear prosecution for simply serving their customers."

Here is the full text of Knudsen's letter:

Dear County Attorney Lambert:

Pursuant to M.C.A. § 2-15-501(5), it is the duty of the Attorney General “to exercise supervisory powers over county attorneys in all matters pertaining to the duties of their offices.” Consistent with this authority, I hereby exercise my supervisory powers with respect to the case entitled Gallatin City-County Board of Health and Health Officer Matt Kelley v. Rocking R Bar, Gallatin County Cause No. DV-20-1278B.

At your earliest convenience, but no later than 12:00 p.m. on January 15, 2021, I order and direct you to dismiss the above-entitled action in accordance with Rule 41(a)(1)(A)(ii) of the Montana Rules of Civil Procedure. Procedurally, the dismissal of the action eliminates any sufficient grounds for the preliminary injunction issued on December 18, 2020. For that reason, I further direct you to coordinate with the defendant to ensure that it may file—simultaneously with or before the filing of the stipulated notice of dismissal—an application to dissolve the preliminary injunction, along with a supporting affidavit, as required by M.C.A. § 27-19-401.

Thank you for your prompt attention to this important matter.
- Austin KnudsenAttorney General of Montana

On November 28th, the Gallatin County Attorney’s Office said it was taking legal action against the Rocking R Bar due to the bar's alleged refusal to adhere to local and state health orders. “The Rocking R Bar is also in violation of the governor’s directive regarding the 10 p.m. closing time, that’s what we’re talking about,” explained Lambert at the time.

“Bozeman police have checked numerous bars in Bozeman. The investigative efforts here have not just been focused on the Rocking R Bar. They’ve checked a number of bars every night. The Rocking R Bar in the town of Bozeman, the Rocking R is the only one not closing at 10 p.m.,” Lambert said.

Governor Greg Gianforte issued a directive Wednesday removing operational hour restrictions on Montana businesses. Click here for details.

(TUESDAY, DECEMBER 15) The Gallatin City-County Health Department and the County Attorney argued their case on Tuesday in a lawsuit filed against Bozeman’s Rocking R Bar.

The hearing was the first time the lawsuit made its way to court since being filed and was heard by Judge Rienne McElyea in Gallatin County District Court.

The health department and County Attorney Marty Lambert are asking the court to enforce county health orders that require bars to close at 10 p.m. The suit claims the R Bar has stayed open past the curfew on several occasions.

Lambert called a total of four witnesses on Tuesday to testify about the virus and how local orders are believed to slow down spreading; Health Officer Matt Kelley and MSU Professor, Dr. Raina Plowright, were among those who testified.

Kelley testified about the authority given to the Board of Health to take measures to protect the public from spread of communicable disease, including closing buildings when necessary.

Mike Hope, owner of the Rocking R Bar, took the stand last to testify why he’s stayed open past the curfew, which he said is because of economic reasons.

“Most people laid people off. We kept paying them, and the PPP did not cover the costs of our payrolls,” Hope said. “They were concerned with how they were going to pay their rent. How they are going to pay their tuition — I’m proud to say we made a commitment to pay them.”